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Lesson learned the hard way

Stauback's dismissal of Katharine Faris was simply a continuation of the discriminatory standard of behaviour expected of her, as a female.

Photograph by: iStockphoto
, Thinkstock

Hell hath no fury, like a victim of discrimination, as Staubach Ontario Inc. learned recently following a seven-year human-rights nightmare.

A company that until recently was engaged in representing commercial tenants in real-estate transactions, Staubach had hired Katharine Farris as an agent. The only female in an otherwise all-male unit, Farris did not endear herself to her colleagues and support staff. Viewed as aggressive, even abrasive, she was seen as the cause of friction in the workplace. Derogatory and offensive gender slurs followed her and became commonplace.

Resentment of her comportment translated itself into baseless rumours of her having an affair with one of the principles of Staubach. Although the author of the rumour was disciplined, the speculation persisted unchecked. In addition, female support staff composed a petition complaining about Farris’s behaviour toward them.

In response, a psychologist was brought in to mediate. That did not resolve the matter. Deciding that it had had enough, management determined to terminate Farris without cause and offer her a severance package. The hope was that she would simply accept the proposal and move on.

But Farris did not go quietly. She pressed forward with a human rights complaint that her dismissal was the result of sex discrimination and that she was a victim of a poisoned work environment because of sex.

After 58 days of testimony and a process that lasted nearly seven years, adjudicator Kathleen Martin of the Human Rights Tribunal of Ontario sided with Farris. While it was true that the complainant was difficult, at times demanding and even cold, it was apparent that she worked in an exceedingly competitive environment in which agents vied for business opportunities. Assertive behaviour that was seen as the norm among male agents was treated as unacceptable in a female, which led to a climate allowing for gendered slurs and sexualized rumours. The employer having inadequately responded to any of these issues, the dismissal was simply a continuation of the discriminatory standard of behaviour expected of Farris, as a female. A hefty award of damages for injury to dignity, feelings and disrespect was imposed on Staubach.

This case puts to rest the prevailing myth of impunity that supposedly attaches to employers that terminate an employee without cause and that make an otherwise reasonable severance offer. Human-rights legislation can be effectively wielded as a weapon by a disgruntled employee, who can drag her employer through years of litigation. To blunt that potential weapon, employers can take the following prophylactic measures:

1. Institute a policy on acceptable communication. Gendered, sexist or biased comments — even in a humorous vein — should not be tolerated.

2. Create a complaint mechanism. If an employee feels that they have been subjected to harassment or discrimination, they should feel free to seek recourse in an internal grievance channel. When an employer demonstrates that it takes these matters seriously, it reduces the odds of a human-rights complaint and its success.

3. Be aware of unconscious gender sterotypes in evaluating complaints. Review the standards by which you assess appropriate workplace behaviours. Are females being dealt with more harshly than males in their interpersonal skills? Are females expected to be warm and nurturing?

4. Ask for details of unacceptable behaviour. A major issue in the Farris case was the failure of the employer to provide specifics to its defence that the complainant was demanding and cold. When details were forthcoming, they often pointed to simply assertive behaviour on Farris’s part.

5. Deal with issues promptly. If an employer becomes aware of sexualized rumours or gendered slurs, it should not await a complaint. Investigate immediately and deal with the matters. Do not allow the environment to become demeaning and thereby intolerable for the employee.

6. Educate staff. When employees understand the boundaries of acceptable conduct, they can be called to account more easily. It also diminishes the exposure of the employer in human-rights litigation.

— Howard Levitt is senior partner of Levitt LLP (levittllp.ca), employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.

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